James Phillips was diagnosed with mesothelioma in March of 2012 and died in February of 2013. In May of 2012, Phillips and his wife, Charity Phillips, filed a complaint seeking damages for personal injuries caused by asbestos in the Superior Court of Fresno County, California. In May 2013, after Phillips’s death, Charity, individually and as the personal representative of his estate, filed a first amended complaint alleging negligence and strict liability. The first amended complaint named more than 25 defendants engaged in the manufacture or …
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Plaintiffs Presented Sufficient Evidence to Withstand Motion for Directed Verdict
The decedent’s estate filed a claim alleging asbestos exposure caused decedent to develop mesothelioma. The trial court directed a verdict in favor of Welco Manufacturing Company because no witnesses could specify how often the decedent used Welco’s products. The plaintiffs appealed, and the appellate court reversed and remanded for a new trial.
The decedent’s cousin, Walter, testified that he and the decedent applied joint compound on close to 50 commercial and residential sites for four months in Illinois in 1965. Walter testified they used, among …
Continue ReadingPort Commission’s Motion to Dismiss for Lack of Subject Matter Jurisdiction Granted Where Plaintiff’s Work was Predominantly Land Based
Mr. Genusa developed mesothelioma as a result of his work as a longshoreman, truck loader, and warehouse worker from 1963-1999. Mr. Genusa passed away and a claim was paid by Baton Rouge Marine Contractors (BRMC) and Signal Mutual Indemnity under the Longshore and Harbor Worker’s Compensation Act.
The plaintiffs instituted this action against 13 defendants that allegedly “designed, tested, evaluated, manufactured, packaged, furnished, stored, handled, transported, installed, supplied and/or sold asbestos containing products to recover the benefits paid to Mr. Genusa’s wife. The last standing …
Continue ReadingSouth Dakota Enacts Legislation Allowing Transparency in Bankruptcy Trust Claims
An ongoing issue in asbestos litigation is whether plaintiffs have received monies from bankruptcy trusts. The plaintiff’s bar has traditionally fought discovery of this information, but recently South Dakota became the first state to enact legislation regarding this issue. Senate Bill No. 138 recommends amending the code to order plaintiffs to identify any asbestos trust claims filed by them not more than one hundred and twenty days before trial. Such identification shall include: information about the trust claim itself; the amount claimed, or to be …
Continue ReadingCase Remanded to Florida State Court Because Defendant Not Fraudulently Joined to Defeat Diversity
In this case alleging asbestos exposure from talc, mesothelioma plaintiff filed a motion to remand back to Florida state court after defendant Johnson & Johnson removed to federal court based upon diversity jurisdiction. The defendant argued that the plaintiff fraudulently joined defendant Publix Super Markets, Inc. (Publix) to destroy diversity. The court determined Publix was not fraudulently joined and remanded.
In determining remand, the court must evaluate the factual allegations in the light most favorable to the plaintiff. If there is even a possibility that …
Continue ReadingAppellate Court Affirms Dismissal in Federal Court Without Prejudice; Allows Plaintiffs to Refile in State Court
Plaintiffs Richard Zanowick and Joan Clark-Zanowick filed suit in state court in July 2014. The defendants timely removed the case to federal court on diversity grounds a month later. With the case now in federal court, Richard Zanowick passed away on October 12, 2014. The plaintiffs filed and electronically served a notice of his death on November 17, 2014. Pursuant to Rule 25(a)(1), the plaintiffs were required to file a motion to substitute a new party for Richard Zanowick within 90 days, or in this …
Continue ReadingIs an Argument Challenging Precedent Bad Faith? Pennsylvania Bad Faith Ruling in Asbestos Coverage Case Raises Important Question
Since 1993, the Pennsylvania Supreme Court’s decision in the J.H. France case has dictated that the continuous trigger rule be applied to determine what insurance policies are triggered for asbestos injury claims. Under J.H. France, coverage is provided by policies in effect from the time the claimant was first exposed to asbestos until injury manifests as mesothelioma. The J.H. France court’s decision was expressly based on the science behind mesothelioma, which indicates that mesothelioma is a continuous, progressive injury that begins at the time the …
Continue ReadingCollateral Estoppel Applied to Bar Second Asbestos Case Against Crane by Same Plaintiff
The decedent, a civilian employee for the United States Navy from 1958-1964, died from mesothelioma. Prior to passing he brought suit in St. Louis City, Missouri, in December 2015, which the defendants removed to federal court. His representatives continued the suit after he passed. Defendant Crane Co. filed a motion to dismiss based upon collateral estoppel. The court granted this motion.
In December 2009, the decedent brought an action against Crane and others in Massachusetts based upon asbestosis. Crane filed a motion for summary judgment …
Continue ReadingLaws of Two States Applied to Two Different Issues
The plaintiff alleged the decedent, who died of mesothelioma, was exposed to asbestos while serving as an engineman, machinery repairman, and machinist mate in the U.S. Navy during the 1960s. Although the majority of the decedent’s exposure occurred on four ships, to which maritime law applied, the plaintiff also alleged exposure during the six months decedent trained at a land-based naval academy in Idaho. Here the court decided whether Idaho or Louisiana applied to this six-month time frame. The plaintiff argued Louisiana law applied, and …
Continue ReadingSummary Judgment Granted as to Two Defendants and Denied for Several Others in Bare Metal Defense Case
The plaintiffs brought this action against several defendants for their decedent’s alleged development of mesothelioma while working aboard ships as an engine man, machinery repairman, and machinist mate.
The defendants moved for summary judgment again after the court announced it would not adopt the Sixth Circuit’s version of the bare metal defense. The court concluded that “the bare metal defense should immunize only a narrower range of conduct.”
Summary Judgment is appropriate when the court determines that there is no genuine dispute as to material …
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